160 Minn. 317 | Minn. | 1924
Defendant was convicted of an unlawful sale of intoxicating liquor and has appealed from an order denying a new trial.
The information charged a sale to a man named Corey. Over defendant’s objection, evidence was received of sales to another man at about the same time. That such evidence is admissible is no longer an open question in this state. State v. Peterson, 98 Minn. 210, 108 N. W. 6; State v. Gesell, 137 Minn. 43, 162 N. W. 683.
The place of sale alleged was the township of Geneva in Freeborn county. The proof was that Corey and a companion named Bagley went to defendant’s store to get alcohol and received from him 20 or 25 gallons in cans, which were delivered on a public highway about a mile east of Geneva. Defendant testified that he lived at Geneva, where he kept a general store. There was no other proof of the place of sale. It seems to have been taken for granted that the store was in Freeborn county. No objection was made to the submission of the case to the jury without formal proof
The defendant testified that his premises had been searched and no intoxicating liquor found. On rebuttal, the state called one of the officers who made the search, who produced a bottle which he said he found in the rear of defendant’s store and referred to the contents of the bottle as “liquor.” But when he was asked if he knew the nature of the liquid it contained, he answered that he was not qualified to say what it was. Thereupon, at the direction of the court, the bottle was removed. In charging the jury, the court said that neither the bottle nor its contents was in evidence, that they were not to be 'considered and the testimony should be blotted out of the minds of the jurors. Unless the state was prepared to prove that the bottle contained intoxicating liquor, it should not have been exhibited to the jury but, in view of the prompt and emphatic manner in which the trial court dealt with the incident, it cannot be held that defendant was prejudiced.
Corey was not a witness at the trial. He afterwards made an affidavit in which he said that, if called as a witness, he would testify that he had never purchased intoxicating liquor from the defendant. At some time prior to the trial, Corey had gone to the state of Iowa, where he was when his affidavit was made. In it he also stated that defendant did not know where he was until a
Order affirmed.